Why The Specter Bill Won't Let Courts Decide the Legality of the NSA Program

David Barron

Senator Specter, as Chairman of the Judiciary Committee, recently voted against a bill sponsored by Senator Schumer that would have conferred statutory standing on persons who had a reasonable fear of having their calls monitored under the so-called Terrorist Surveillance Program. That bill was intended to ensure that the standing objections that the government is sure to raise -- and already has raised -- would not bar courts from addressing the merits of the serious Fourth Amendment and Separation of Powers issues raised by the government's decision to engage in warrantless wiretapping without complying with FISA. In casting the deciding vote in committee against that bill, Specter raised Article III concerns -- namely, whether Congress has the power to confer standing on the open class of persons named in the bill given that they could not prove they had themselves actually been surveilled. But it's odd that Specter seems to have such a cramped view of the Congress's power to give jurisdiction to the federal courts because his own bill gutting FISA creates a far more serious Article III problem.

Specter's bill is designed to ensure that the program as a whole will be reviewed by the FISA Court for compliance with the Fourth Amendment. It does so by providing that the program may be submitted, in toto and in secret, to the FISA court for review. Since the statute essentially gives statutory sanction to such a program, it would remove the separation of powers issues raised by the Administration's present disregard of FISA. But just because Congress says the President can do something, doesn't mean it's constitutional. So Specter claims to want to make sure that an Article III court -- here, the FISA Court -- concludes that such a program comports with the Fourth Amendment. But can an Article III court issue a judgment about whether a broad-based program is lawful in the manner that Specter wants?

Presumably, Specter thinks that the FISA court's review of the program as a whole is just like its review of a typical wiretapping application. Article III courts can grant warrants that identify a particular target probably because of the notion that such applications satisfy the Article III requirements of concreteness -- there's a specific case at issue -- and adversariness -- there is an identifiable target of either the search or the investigation. To be sure, there is no actual party contesting the application in such cases because the proceeding is ex parte. But there is no general Article III bar to ex parte proceedings. When we turn to Specter's scheme, however, things are very different. Specter's bill would authorize the Article III FISA Court to review the entire program of surveillance. By definition, then, there would be no identifiable targets at the time judicial approval is sought -- other than, presumably, any persons potentially covered by the terms of the Authorization of to Use Military Force. That means there would be neither concreteness nor adversariness. And so, what Specter's bill does is ask the FISA Court to do the classic thing that no Article III court can do: issue an advisory opinion.

So what's likely to happen if Specter's bill becomes law: the statute will have authorized the program on the expectation of FISA Court review of it for constitutional compliance. But the FISA Court, upon being handed over the program by the Administration, would likely rule that it has no Article III jurisdiction to pass on the legality of a general program of that kind. And thus the consequence of the Specter bill will be to have authorized a program that will never have been judicially sanctioned -- the very opposite of the outcome that Specter claims to be attempting achieve.

Any way out of this mess? Aside from junking the Specter bill altogether, which has its own appeal, Specter's bill should at least make its authorization provisions contingent on the FISA Court determining that it has the Article III jurisdiction to review the program's legality.

Since FISA courts have Article III judges, I would have thought they would be considered Article III courts. But that's just my guess.

As far as the problem of no court has jurisdiction, I would repeat the comment I made yesterday, that it would be possible for state courts to rule on its consitutionality even if the federal courts have their jurisdiction stripped. The practical effect of such a state court ruling, however, is far from clear.

If a court determines that to decide such an issue would be an advisory opinion, then a provision of the statute is unconsitutional. So the question is how much of a part of the statute needs to be severed. The argument could be made that one provision which says that no other court has jurisdiction is not severable from another provision which confers jurisdiction on a single court. So the court could strike both provisions as being part of the same package, and normal jurisdictional rules might apply.

It seems to me the Specter construct in asking the FISA court to decide the entire program's ligitmacy is so tautological as to be the functional equivalent of denial of certiorari. The Supreme Court might be a more appropriate forum because, as the author depicts, there is no real target or confidential data here triggering the need for the clandestine court's being called into action; the FISA court being a body responsible only to the Chief Justice, as comprised solely of his appointees.

On the contrary, I agree with the author here, that Specter's opting for a forum in the FISA court for an assessment of the ligitimacy of his proposal is a thin veneer scarcely covering his attempt to squelch a more open proceeding. State secrets are not at all part of the determination of constitutionality; or if that kind of gray mail is pled by the executive in an attempt to seek to assure the Specter policy design go before FISA for review of validity, then the secrets portions need to be stripped out during a genuine process certification for hearing, as is standard in predocketing procedures at Scotus. I would like to hear Marty Lederman's view of the behind the scenes segment of the Specter proposal, now that we are close to a senate vote. It seems the author has highlighted a key fissure in the Specter legislation, timely.

Actually, a route to a real test case in the FISA courts has existed under current law all along. The case would not be advisory, because it would have real facts with a real target. The Bush administration has cowered from initiating such a case, however.

Notably, a case brought under existing law could test not only the Fourth Amendment issues -- where the administration may well prevail -- but also the separation-of-powers questions where it expects it would lose.

The government has the standing to apply for a FISA warrant based upon information derived from prior warrantless surveillance by the NSA.

We know from reporting in the Washington Post that the chief FISA judges, concerned that warrant applications might be tainted by the warrantless surveillance they fear would be found to be unlawful if considered in such a real case, have warned DOJ not to submit such applications. So there has been a procedure that when a FISA target has previously been the subject of the warrantless surveillance, DOJ officials have to certify that the application was not derived from the fruit of the warrantless surveillance. Such cases arise about 10 times per year, according to the Post.

All DOJ has to do to get a test case is to bypass this procedure, and apply for the warrant based on the surveillance program it claims in out of court public statements to be lawful. That would trigger judicial review.

DOJ even has a home-court advantage in the FISA court, because at that level rulings are appealed only if they are adverse to the government. At the appellate level, third parties such as the ACLU could argue the legal issues, as was done in the 2002 In Re: Sealed Case ruling. An appellate ruling either way would be reviewable by the Supreme Court. Bush's lawyers would be free to make whatever argument they choose to justify the surveillance -- the AUMF argument, the Article II argument, the Tooth Fairy argument, etc.

To (sort of) answer my own question: the 9th Circuit, per Kennedy, has held that FISA courts do not violate Art. III because the judges are all Art. III judges. It's not quite clear to me that this means the FISA court is an Art. III court, but that seems to be the implication.

It may be, as Prof. Kerr suggests, that there's a clever way to draft the statutory authorization so as to permit the FISA Court of Review to get around the advisory opinion problem - but that's not to say that the Specter legislation contains such a clever device.

And what's the deal with Bush orally promising to submit the program for review if Congress passes his bill without alteration? I'd be immediately suspicious of anyone who tried to get me an oral promise in lieu of a written requirement.